Albuquerque police Sgt. Scott Norris also said that Dear had a reputation for being abrasive, lacked interpersonal skills and frequently was the target of internal police investigations.

He made his comments in a previously sealed deposition taken by Shannon Kennedy, an attorney representing the Hawkes family in ongoing lawsuits against Dear and the city of Albuquerque. Parts of the deposition were unsealed during a hearing Monday before state District Judge Nan Nash on several motions in the case.

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Norris had been conducting an internal affairs investigation into the shooting. He said in his deposition that the search by officer Sonny Molina of a cellphone that identified Hawkes as a potential car thief – and which eventually led to the fatal chase – wasn’t constitutional.

During the hearing Monday, Nash denied one of Kennedy’s motions for summary judgment, but agreed that Molina should have obtained a warrant before searching the cellphone.

Mary Hawkes was 19 years old when she was shot and killed by Albuquerque police officer Jeremy Dear. Hawkes’ family has filed a wrongful death lawsuit over the shooting.

Molina said he had seen Hawkes driving a truck before she parked it and fled the area. Molina found the phone inside the truck and saw that it was opened to Hawkes’ Facebook page, which sparked a manhunt for the girl by officers in Albuquerque’s busy Southeast Area Command.

A police spokeswoman shortly after the shooting said that the department at the time didn’t have a policy governing when cellphones could be searched.

Police officials, responding to a Journal question Tuesday, didn’t say whether any officer was disciplined for policy violations in connection with the Mary Hawkes shooting. Police Chief Gorden Eden previously said during a deposition that the internal affairs investigation into the shooting was stopped and never completed because the district attorney hasn’t announced whether charges will be filed in the case.

At the time, APD often waited for a criminal investigation to be completed before conducting an internal affairs probe to determine whether any policies had been broken.

But Norris said police made mistakes that night.

“He (Molina) didn’t have probable cause to search a phone. He hasn’t established anything. And if he had established anything, he didn’t put it on a piece of paper signed by a judge,” Norris said, according to a transcript of the deposition. “I can tell you that, as a supervisor, if he had brought that to me and written the facts down on a warrant, I wouldn’t have signed it. And I’d have told him, ‘you ain’t taking that to a judge.'”

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Phone abandoned?

Plaintiffs argued in their motion that Molina used the information he found on the phone to “assemble a pack of officers to search for and find and kill her.”

But the city of Albuquerque argued in its response that Hawkes abandoned the phone, which did not even belong to her, and therefore had “no subjective expectation of privacy in the cellphone.”

Nash ultimately found that there were no exigent circumstances that would have made the warrantless search of the cellphone permissible.

Kennedy called Nash’s finding “fantastic” for the Hawkes family’s case, even though it came in the context of a denial of their motion for summary judgment. A jury will have to determine at trial whether that unconstitutional search was a cause of Hawkes’ death, Kennedy said.

The city legal department was not available for comment Tuesday, but said in a statement that it was pleased with the judge’s denial of the Hawkes’ motion.

Nash also heard arguments regarding a second motion for summary judgment that she said she would rule on later.

Shooting questioned

Dear shot Hawkes, a suspected car thief, near Zuni and Wyoming in Southeast Albuquerque on April 21, 2014, after a short foot chase. Police have said that Hawkes pointed a gun at Dear, but that account has been questioned by the lawsuits filed in the case.

The nearly 3-year-old shooting has been a source of controversy for the police department.

Dear, who had a history of excessive force complaints, didn’t make a recording of the shooting. He said his camera was unplugged during the brief foot chase prior to the shooting.

The lawsuits filed in the case have raised questions about the incident. One suit says that Hawkes’ fingerprints or DNA were never found on the weapon that police collected at the scene and which they said she pointed at Dear before he fired his shots. And the suit says that Hawkes’ injuries weren’t consistent with the police version of the shooting.

In documents the Journal received Tuesday, messages from Dear sent to another officer hours before the shooting show that he was talking about being tired and only getting three hours of sleep the night before.

Norris also said in his deposition that when police recovered the stolen truck the night of the shooting, they didn’t collect all of the property inside the truck.

Eden fired Dear from the department, but not for the shooting. It was after a separate internal affairs investigation found that Dear failed to make recordings on many of the calls he was on. Dear appealed his termination and the city personnel board voted to reinstate him. The city appealed the board’s decision, which is pending.

When reached Tuesday, Dear’s attorney Tom Grover said Norris’ comments are not relevant to Dear’s appeal to get his job back.

Two cases consolidated
Judge Nan Nash on Tuesday granted the Hawkes family’s motion to consolidate two civil lawsuits surrounding 19-year-old Mary Hawkes’ death.
The cases filed in state District Court – one against the city of Albuquerque and one against Jeremy Dear – “both involve common questions of law or fact,” Nash wrote in her order filed Tuesday. Both Dear and the city opposed the consolidation, citing potential prejudice and confusion.
Nash wrote that much of the testimony in both cases overlaps and would be repeated in two separate trials, and that consolidation “would avoid unnecessary costs and may prevent delay and is in the interest of judicial economy and resources.”
Dear’s attorney argued that his client’s alleged misdeeds that are relevant to the city’s potential liability are irrelevant to whether his use of force against Hawkes was objectively reasonable.